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Prosecution Guidelines

Chapter 5. Victims and witnesses

The ODPP recognises the important role that victims of crime play as participants in criminal proceedings and will treat all victims with courtesy, compassion, cultural sensitivity and respect.

Published 29 March 2021

5.1 Introduction

The ODPP recognises the important role that victims of crime play as participants in criminal proceedings and will treat all victims with courtesy, compassion, cultural sensitivity and respect.

The ODPP is an independent statutory agency whose main function is to prosecute serious crime in NSW independently, on behalf of the entire NSW community. The ODPP does not provide legal representation to victims.

5.2 New South Wales Charter of Victims’ Rights

The ODPP is bound by the  Charter of Victims’ Rights and that document together with these Guidelines form a framework under which the ODPP works with victims and witnesses.

5.3 Communicating with victims: general principles

When communicating with a  victim, the prosecutor must have regard to:

  1. whether the victim wishes to be contacted about the matter
  2. the victim’s preferred method and frequency of contact
  3. the personal circumstances of the victim

The victim must be given the contact details of the solicitor with carriage of the matter.

The victim must be given information about the case at an early stage, and there is an ongoing obligation to keep them informed throughout its progress. This must be done directly by a member of the prosecution team, rather than through administrative staff or police officers. An effort must be made to minimise the number of staff members responsible for victim contact.

5.4 Information to be provided

Victims of crime must be given the following information in a timely manner, unless:

  1. they have indicated that they do not wish to be consulted (either specifically about such matters or generally) or
  2. their whereabouts cannot be ascertained after reasonable inquiry.

Information about the court process, the victim's role as a witness and support services

Information about the charges

  • The victim must be informed about the charges laid against the accused.
  • The victim must be consulted prior to the prosecutor deciding:
    • to substantially change the charges
    • not to proceed with some or all of the charges
    • to accept a plea to a less serious charge.
  • The victim must be informed of any such decision prior to it being announced in court.

Information about bail

  • The victim must be:
    • notified whenever the accused applies for bail, including any application to vary the conditions of bail
    • consulted about any need for protection they may have prior to the hearing of the bail application
    • promptly informed of the outcome of any bail application, including any special bail conditions designed to protect the victim or the victim's family.

Information about the date, time and location of court listings

  • The prosecutor must inform the victim about the date, time and location of any mention or hearing of the case, including bail, committal, trial, sentence, appeal and breach of sentence hearing.

Information about the outcome of hearings

  • The prosecutor must inform the victim about the outcome of any part of the proceedings, including bail, criminal case conference, committal, trial, sentence, appeals and breach of sentence.

Information about appeals

  • If an appeal is lodged, the prosecutor must inform the victim about:
    • the fact that an appeal has been lodged
    • the type of appeal
    • the appeal process and possible outcomes.

Information about breach of sentence

  • If an offender is required to appear before a court in relation to a breach of sentence, the solicitor with carriage of those proceedings must inform the victim about:
    • the fact that the offender is required to appear before the court for breaching the sentence
    • the nature of the proceedings and possible outcomes.

Information about sexual assault communications privilege

  • If access to a victim's confidential counselling records is sought by the accused, the victim should be informed about legal advice and assistance available through the Sexual Assault Communications Privilege Service, Legal Aid NSW.

Information about the defence of mental illness, fitness inquiries and special hearings

  • In all cases involving the defence of not guilty by reason of mental illness, the prosecutor must inform the victim about:
    • what the defence of not guilty by reason of mental illness means
    • how the evidence may be presented regarding the defence of mental illness
    • the options available to the court if the accused is found not guilty by reason of mental illness.
  • In all cases where the accused's fitness to be tried is raised, the prosecutor must inform the victim:
    • of the date, time and location of any fitness hearing, special hearing, and hearing for the imposition of a penalty
    • about the nature of fitness inquiries and special hearings.

Information about Victims Registers

  • In all cases where an offender is sentenced to full-time detention or subject to a limiting​ term, the solicitor with carriage of the matter must provide the victim with contact details for the relevant Victims Register with Corrective Services, Juvenile Justice or the Forensic Division of the Mental Health Review Tribunal.

5.5 Additional obligations to victims and other prosecution witnesses

Victims and prosecution witnesses must be informed:

  1. if there is a prohibition against the publication of their name and other identifying information
  2. that they are not obliged to state their address or telephone number in open court, unless the court otherwise orders.

Prosecutors should be familiar with the various legislative provisions available with respect to:

  • excluding the public from the court room
  • using pre-recorded evidence
  • using special measures, such as screens and closed-circuit television (CCTV) facilities to give
  • evidence
  • the presence of a support person.

Prosecutors should explain the effect of the applicable provisions to victims and other prosecution witnesses.

A prosecution witness entitled to use special measures to give evidence must not be discouraged from doing so because of any perceived forensic advantage in not making the appropriate arrangements.

Prosecutors must be familiar with legislative provisions designed to protect the privacy of victims and witnesses and must apply for a  closed court,  non-publication order or suppression order in appropriate cases. Prosecutors must inform victims if there is an option for them to request the lifting of a non-publication or suppression order. As far as practicable during the hearing the ODPP must minimise a victim’s exposure to unnecessary contact with the accused, defence witnesses and supporters of the accused.

5.6 Consultation resolving charges and discontinuing prosecutions

The victim must be consulted prior to making any of the following decisions, unless they have expressed a desire not to be consulted or their whereabouts cannot be ascertained after reasonable inquiry:

  1. to substantially change the charges
  2. not to proceed with some or all of the charges
  3. to resolve the matter by accepting a plea to a less serious charge (see Chapter 4: Charge resolution). 

Consultation with a victim regarding charge resolution requires an explanation of the full implications of proceeding on fewer or lesser charges, including:

  1. an explanation of the current charges and any proposed substitution of them
  2. a summary of the reasons why charge resolution is being considered
  3. the respective maximum penalties of the charges
  4. the impact of any charge resolution on the evidence to be presented on sentence, including the statement of agreed facts and any Victim Impact Statement
  5. where relevant, the implications of a matter being dealt with as a Form 1 offence.

In advising a victim of a possible discontinuance of all charges, a summary of the reasons why discontinuance is being considered should be provided.
Providing a summary of reasons does not constitute a waiver of  legal privilege.

Victims must be given adequate time to form their views, having regard to the nature and urgency of the decision. This includes giving victims the opportunity to obtain assistance from a parent or carer (other than the accused) or a support person, before providing their views.

The views of the victim must be taken into account and given due consideration but are not determinative. It is the public interest, not any private individual or sectional interest, that must be served. The decision to proceed by way of charge resolution or to discontinue all charges rests with the Director or the Director’s delegate.

There are cases when the victim requests that proceedings be discontinued. This can occur in proceedings for domestic violence offences (see Guideline 5.9), non-domestic sexual assault offences and in other contexts. Careful consideration must be given to any request by a victim to discontinue proceedings in determining whether a prosecution is in the public interest, but other factors are also relevant, including where there is other evidence implicating the accused person, where there is a history of similar offending and the gravity of the alleged offence.

5.7 Referring matters to the Witness Assistance Service (WAS)

The role of the Witness Assistance Service (WAS) is to provide support in appropriate cases to victims and witnesses during the criminal justice process. WAS can assist with providing information, identifying special needs of victims and witnesses, referring victims for counselling and support, providing court preparation and coordinating court support. WAS allocates its resources to victims and witnesses in greatest need of its services.

The solicitor with carriage of a matter must ensure it has been referred to WAS as early as possible in the prosecution process if it involves:

  1. death
  2. sexual assault
  3. domestic violence
  4. a child victim or witness
  5. a victim or witness with special needs.

In any other case, the solicitor with carriage should refer the matter to WAS when it is considered appropriate. 

5.8 Conferences

A conference with a victim or witness may be conducted for the following purposes:

  1. to obtain information from and about witnesses on evidentiary issues
  2. to explain the court process and other matters referred to in Guideline 5.4
  3. to consult victims as required under Chapter 4: Charge Resolution and Guideline 5.6.

Prosecutors, including a Crown Prosecutor where one is briefed, must confer with victims at the earliest available opportunity before all court hearings. Key witnesses should ordinarily be conferenced, but there may be occasions where this is undesirable. A WAS officer may be present for some conferences and should be consulted if there has been prior WAS involvement. The victim may also wish to have some other support person present during the conference.

5.9 Victim Impact Statements

The harm suffered by a victim is a factor to be taken into account in sentencing.  Victims who have suffered physical, psychological or psychiatric harm, and family members of a deceased victim, must be informed about:

  1. the right to prepare a Victim Impact Statement (VIS)
  2. how a VIS may be presented in court, including that it may be read aloud
  3. alternative arrangements available for the reading of a VIS aloud
  4. the limits on what may be included in a VIS
  5. the sort of content that may result in objection being taken to the VIS or parts of it.

The prosecutor must take  all  reasonable steps to ensure that  the victim has a sufficient opportunity to prepare a VIS. If the prosecutor has been given insufficient notice of a defence plea to allow for the victim to prepare a VIS, an adjournment of the sentencing proceedings must be sought.

The prosecutor must ensure that any VIS prepared complies with the legislation, including that it does not contain material that is offensive, threatening, intimidating or harassing. Any such material and other inadmissible material (such as allegations of criminal conduct going beyond the offences for which the offender is being sentenced) must be deleted before a VIS is tendered. A victim should be consulted as to changes that may be required to their VIS and informed of the reasons for these changes.

5.10 Domestic violence offences

General principles

The ODPP recognises the unique dynamics a domestic violence context brings to a prosecution. Victims and witnesses may be afraid of the consequences of giving evidence or may not wish to show allegiance to a particular family member. The ODPP must conduct prosecutions involving domestic violence sensitively, having regard to the needs and safety of those affected by it.

It is therefore important that victims of domestic violence are supported throughout the course of criminal proceedings and that all reasonable steps are taken to minimise delays. 

Requests to discontinue

In some cases a victim of domestic violence may not wish to give evidence or may request that a prosecution be discontinued. Possible reasons may include:

  1. harassment or intimidation by the accused, or the accused’s family or associates
  2. pressure from family and community members
  3. fear of being publicly shamed, disowned or outcast from the community
  4. fear that showing support for a prosecution may place them at further risk of harm
  5. a wish to reconcile with the accused
  6. a belief that the accused will not re-offend, for example, because they have undertaken to attend counselling
  7. fear of the accused receiving a custodial sentence and the financial consequences this would have on the accused, the victim and any children.

If the victim demonstrates reluctance or unwillingness to give evidence, steps should be taken to ascertain the reasons why. The prosecutor should:

  1. request that police investigate
  2. conduct a conference with the victim, if possible, to discuss the victim’s concerns and any available options to allay those concerns
  3. consult with WAS regarding any prior contact.

The following matters are to be considered in determining whether the matter should proceed:

  1. the reasons the victim does not want the matter to proceed
  2. information known about any risk to the safety of the victim, children, dependents, or other persons connected to the victim
  3. whether the victim has been advised about available support services, special measures for giving evidence or other protections available during the proceedings
  4. whether there is a reasonable prospect of conviction without the victim having to give evidence
  5. the seriousness of the alleged offence, including:
    a.   the harm the victim suffered
    b.   whether the offence was planned
    c.   whether a weapon was involved
    d.   whether the offence was committed in the presence of children
  6. any reported or otherwise known history of violence by the accused against the victim or others, including, for example, repeated police call-outs 
  7. whether there has been an escalation in the seriousness of violence
  8. any history of threatening behaviour, stalking or intimidation by the accused
  9. whether the alleged offence was committed in breach of bail, sentence, parole or an apprehended violence order
  10.  the personal circumstances of the victim, including their well-being if they are required to testify
  11.  the views of the officer-in-charge and, where relevant, any other agency.

Although the victim’s attitude to continuing a prosecution is important, it is not to be regarded as determinative. In some cases, it may be appropriate to seek to compel the attendance of the victim to give evidence. There may also be cases where the prosecution can proceed without calling the victim to give evidence. A prosecutor should determine whether there is a case based on evidence other than the victim’s account that can prove any or some of the offences charged.

Apprehended Domestic Violence Orders

Prosecutors must be familiar with the legislation relating to the court’s power to make interim and final apprehended violence orders against a person charged or convicted, respectively, of a domestic violence offence under Part 9 of the Crimes (Domestic and Personal Violence) Act 2007. This power should be brought to the court’s attention in appropriate cases.

5.11 Complaints and reviews

A victim who has a complaint about the ODPP relating to a breach of the Charter of Victims’ Rights or about the handling of a case involving them may make a complaint in accordance with the ODPP feedback and complaints policy.

The ODPP also has a Victims’ Right of Review Policy that gives victims the right to request a review of a decision not to prosecute in certain circumstances. Victims who have a right to request a review are to be informed of this in writing when they are notified of the decision.